Morrison v Milner and Baldwin [2009] NSWIRComm 57

Industrial Court of New South Wales

CITATION: Morrison v Milner and Baldwin [2009] NSWIRComm 57

APPELLANT: Rodney Dale Morrison

RESPONDENTS: PARTIES: Matter No IRC 2008/574 John Hamilton Milner

Matter No IRC 2008/575 Stephen Barry Baldwin

FILE NUMBER(S): IRC 574 and 575 of 2008

CORAM: Boland J President; Kavanagh J; Backman J

OCCUPATIONAL HEALTH AND SAFETY - Appeal by prosecutor from decision at first instance dismissing proceedings brought against a director and a manager pursuant to s 15(1) and s 50 of the Occupational Health and Safety Act 1983 - Notice of contentions by respondents challenging prosecutor's authority to institute proceedings against them and other matters - At the time the proceedings were instituted prosecutor was appointed under s 47A of the Occupational Health and Safety Act 2000 - Three preliminary issues: (1) whether the Full Bench had power to deal with the respondents' notices of contention (held necessary power existed); (2) whether the Full Bench had jurisdiction to deal with what was contended to be a collateral challenge by the respondents (held there was jurisdiction); and (3) whether the de facto officer's doctrine applied in respect of Mr Morrison's appointment and, therefore, even if the appointment was defective, the acts done by Mr Morrison in apparent execution of his office cannot be challenged on the ground that he has no title to the office (held doctrine did not apply) - Whether there was a valid appointment was a question of statutory construction - Appropriate test to be applied was that enunciated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 - Held that even if the respondents were correct in contending that the appellant's appointment as an inspector under s 47A of the Occupational Health and Safety Act 2000 was not in accordance with the provisions of the legislative scheme the appointment was not thereby invalidated and, therefore, the prosecutions were properly instituted